The Law's Heavy Hand

For the most part, Harvard has been fairly lenient in disciplining the sit-in participants. College students were essentially let off with a warning, and Kennedy School students received no punishment at all. The law school, however, has been considerably harsher. The four law students who sat in received a formal reprimand from the law school's administrative board, its disciplinary body--a punishment that will remain on their transcripts and require explanation whenever they apply to a state bar. But what outraged the students even more than the reprimand was the way the law school's ad board conducted its hearing. The student defendants were never informed of the specific charges against them, and they found during the hearing that the "investigator" appointed by the board was free to stray from transcribed testimony of witnesses and to interpret their emotional states. What's more, all the evidence against the students consisted of allegations of misconduct attributed to unnamed sit-in participants.

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Even as campaign finance reformers celebrated the long-awaited passage
of the McCain-Feingold bill this spring, they cautioned the public not
to assume the fight for reform was over. "This bill will only thwart the
special interests for so long," Senator McCain himself predicted.
"Twenty years from now, they will have figured out other ways to get around it, and another
couple of senators will be fighting to break the endless cycle of
corruption and reform." While McCain-Feingold is a significant
legislative accomplishment that will help to plug the gaping soft-money
hole in the existing system, these reformers explained, there are still
gaps through which private money can exert undue political
influence--and the fight to close them is just beginning.

This is the way campaign finance reform has worked since the first piece
of remedial legislation was passed in 1907--a cycle of public outrage,
stopgap legislation and new forms of abuse, prompting further outrage.
Lasting solutions have so far proven elusive--in large part because of
the Supreme Court's 1976 Buckley v. Valeo ruling that campaign
spending limits are unconstitutional. So reformers are stuck fighting
with more or less the same tools they've always used: contribution
limits, voluntary spending limits, public financing and full disclosure
of funding sources.

The limited effectiveness of these tools has prompted two Yale Law
professors, Bruce Ackerman and Ian Ayres, to offer a radical rethinking
of the problem. Ackerman--who last attracted public notice with his bookThe Stakeholder Society, in which he proposed to eliminate
chronic economic injustice by giving every young American adult a stake
of $80,000, financed by an annual wealth tax--and Ayers clearly have no
qualms about tackling big problems. Their new book, Voting With
Dollars, starts with a simple and seductive question: If the old
reform tools aren't working, why not try new ones? Rather than imposing
increasingly complicated contribution and spending limits, they suggest
removing them. Rather than relying on bureaucracies to distribute public
funds to candidates, they say, let the voters do it directly. And rather
than mandating complete disclosure of politicians' funding sources, they
propose keeping such information completely secret--especially from the
politicians themselves.

At the core of Ackerman and Ayres's proposal is what they call the
"secret donation booth." Like votes, the authors argue, campaign
contributions should be made anonymously. That way, private interests
could not influence elected officials with their money, because there
would be no way for a contributor to prove that he had given money to a
candidate. (So as not to discourage citizens of average means from
donating modest amounts by denying them the ability to take credit for
their gifts, Ackerman and Ayres permit the government to confirm that a
donor has given up to $200.)

Just as the introduction of the secret ballot in the late nineteenth
century put an end to the then-common practice of vote-buying, the
authors assert that the implementation of a secret donation booth (in
actuality, a blind trust administered by the FEC) would eliminate
influence-buying. Sure, John Richman might claim he's given a million to
Jane Candidate, but such unverifiable talk is cheap, and politicians
will attach to such assurances the same minimal weight they attach to
promised votes. Once that avenue of political influence is closed off,
Ackerman and Ayres reason, donors interested solely in the corrupting
power of their contributions will have no reason to pour their money
into politics, and private giving will be left to those few donors
motivated by pure political ideology.

To make up for the funds that would be lost once this private money
leaves the system, Ackerman and Ayres propose that the government give
every registered voter fifty "Patriot dollars"--money they'd be able to
put toward whichever federal candidate, national political party or
interest group they wanted, simply by going to their local ATM. Based on
voter participation numbers from the 2000 election, Ackerman and Ayres
calculate that the Patriot system would infuse $5 billion into a federal
election cycle, dwarfing the $3 billion that was spent in 2000. Thus,
they reason, Patriot dollars would not only insure that viable
candidates had enough money to fund their campaigns but would also make
them dependent on funds from, and thus more responsive to, the
electorate as a whole.

So far, so good. And there's more: In addition to the secret donation
booth and the Patriot system, "voting with dollars" would produce two
compelling side effects.

First, by giving each registered voter fifty Patriot dollars to spend on
the election, citizens would be encouraged to inform themselves earlier
and more thoroughly about issues and candidates, so as to make the best
use of their allocation. This heightened civic engagement would likely
translate into higher voter turnout and a consistently better-informed
electorate--what Ackerman and Ayres call "the citizenship effect."
Second, by avoiding all spending limits, a common plank of more
traditional reform platforms, "voting with dollars" would not run afoul
of the Supreme Court, which famously ruled in Buckley that "the
concept that government may restrict the speech of some elements of our
society in order to enhance the relative voice of others is wholly
foreign to the First Amendment."

In theory, then, "voting with dollars" has lots of appeal. It's a fresh
approach to an old problem; it promises to reinvigorate a tired
electorate; and it's Supreme Court-proof. Not satisfied with a theoretical discussion of their proposal,
however, Ackerman and Ayres devote the bulk of their book to describing
what their reform would look like in practice. And this is where they
run into trouble.

To be sure, many of their implementation mechanisms are impressively
well-researched and carefully crafted, and at first they make it seem as
if "voting with dollars" just might work. To prevent a donor from
getting around the anonymity of the donation booth with an unusually
large contribution, for example, the authors propose to enter large
contributions into a candidate's account in random amounts at random
intervals, according to a special "secrecy algorithm." That way, the
donor couldn't simply tell the candidate to expect his account to
increase by a certain amount on a certain date, and then claim the
credit. (Ackerman and Ayres would bar what they call "stratospheric"
contributions to eliminate amounts too large to be hidden even by their
secrecy algorithm.) A donor would also be unable to prove he'd
contributed by flashing around a canceled check made out to the blind
trust, since all contributions would be revocable for a five-day period,
giving the donor no way to prove he didn't simply ask for his money back
the next day.

In spite of these intricate measures, however, there are a few reasons
Ackerman and Ayres's implementation scheme is fatally flawed. First, no
matter how refined your secret donation booth is, candidates will always
be able to figure out where their money's coming from. For proof of
this, one need look no further than our current voting system. Even with
the secret voting booth, candidates use polling, voter registration
rolls, demographic data and a host of other increasingly sophisticated
tools to figure out with eerie precision who's going to support them,
and they target their campaigns accordingly. Similarly, while a secret
donation booth would prevent politicians from knowing precisely how much
money each individual or privately funded PAC is giving, candidates
would still have a pretty good idea of who their big donors were likely
to be, and they'd still grant those likely donors uncommon access--a
politician's most valuable resource. Even if the secret donation booth
had been in place during the 2000 election, for instance, George Bush
would still have asked Ken Lay for fundraising help (by, say, organizing
a fundraising dinner--a permissible activity under Ackerman and Ayres's
paradigm, as long as there's not a per-plate charge). And Ken Lay would
still have been invited to meet with Dick Cheney's energy task force
once the pair was in the White House.

Then there's the problem of independent expenditures. Ackerman and Ayres
are sharply critical of McCain-Feingold's attempts to rein in such
electioneering, calling the act's restrictions on such spending in the
months leading up to an election an "important weakness" that "restrains
free speech." (Because of arguments like this, these restrictions are
widely held to be the most vulnerable part of McCain-Feingold. In June
the FEC barely rejected a proposal that would have significantly
weakened the act's independent expenditure restrictions, and upcoming
court challenges target these restrictions as well.)

And yet, independent expenditures are a significant obstacle to any
attempt to reduce private money's role in politics, as they allow any
individual or interest group with money the chance to make an end run
around the regulated campaign finance system. Conventional attempts to
curtail these expenditures may not solve the whole problem, limited as
they are by the First Amendment, but they're better than the unregulated
alternative that Ackerman and Ayres propose. In their reform scenario,
independent "issue" campaigns that do not explicitly endorse a
candidate--according to the Court's limited definition of express
advocacy, which focuses on certain "magic words" such as "elect" and
"vote for"--would be unregulated. In other words, organizations would be
free to fund "issue" ads whose timing and content are obviously intended
to help a particular candidate, as well as to publish the identities of
their contributors and the magnitude of their support, as long as those
ads didn't explicitly tell you how to vote. One can only imagine that in
the anonymous "voting with dollars" world, this opportunity to claim
credit for expenditures clearly designed to help a particular candidate
would be all the more alluring. And yet the only remedy Ackerman and
Ayres offer is their statute's "swamping control," which would increase
Patriot allotments in the next election cycle whenever private spending
skewed the national Patriot/private ratio below 2 to 1. Other than this
after-the-fact correction, Ackerman and Ayres offer no barriers to
prevent private money from flowing to such unregulated channels.

In the end, Ackerman and Ayres's paradigm is handicapped by its
Court-centered approach. The authors chide traditional reformers for
painting Buckley v. Valeo as the primary roadblock to reform,
saying that such a view is both counterproductive, because the Court is
unlikely to reverse Buckley anytime soon, and wrong, becauseBuckley upholds such fundamental constitutional principles as
free speech. By embracing Buckley, they argue, their approach is
more pragmatic and more principled. And yet, its legal pragmatism
notwithstanding, "voting with dollars" does not confront the central
injustice of the current system: the exorbitant influence of big money.
In focusing solely on ending the potential for quid pro quo
corruption--the one aspect of campaign finance that the Court has
consistently shown itself eager to regulate--Ackerman and Ayres downplay
the degree to which private money controls politics even without such
blatant dealmaking. The truth is, as long as politicians are dependent
on private money to finance their campaigns, monied interests will play
a disproportionately large role in setting the political agenda. This is
why traditional reformers have chafed at Buckley's narrow
definition of corruption, and it's why they continue to advocate
solutions that use a combination of disclosure laws, limits and public
financing. At its core, the campaign finance reform movement is about
more than simply putting an end to under-the-table deals between wealthy
individuals and unscrupulous politicians. It's about opening up the
electoral system, so that people without networks of wealthy friends
will be able to wage viable campaigns for public office, and won't be
beholden to private interests once they get there. While Patriot dollars
are a good step in this direction, they don't go far enough. Without
contribution and spending limits, the public financing offered by
Patriot dollars would quickly be drowned out by the torrents of private
money flowing into the system.

For all its shortcomings, Voting With Dollars deserves credit for
pushing reformers to rethink some of their cherished assumptions about
what works, and what's desirable. However, by refusing to consider more
standard approaches to reform like disclosure, contribution limits and,
in particular, voluntary public financing systems like those currently
in place in Maine and Arizona, Ackerman and Ayres have boxed themselves
into an unworkable system. Ultimately, Voting With Dollars'
radical approach to campaign finance reform would expand big money's
role in politics, rather than insulate democracy from it.

On May 8 twenty-three jubilant, grubby Harvard students left the offices of university president Neil Rudenstine after a twenty-one-day sit-in, the longest in Harvard's history. The students had demanded that the university pay its workers what the City of Cambridge had determined was a living wage--now the minimum for all municipal employees--$10.25 an hour. A university committee had ruled against a similar proposal a year earlier, but this time, after the sit-in drew three weeks of coverage critical of the university in the local and national media, the administrators gave ground, agreeing to reopen serious discussion.

Several commentators pointed out the incongruity of privileged Ivy Leaguers taking up such a blue-collar cause, but what the coverage often missed was that the Harvard sit-in was part of a growing movement on US campuses emerging from a burgeoning alliance between student activists and organized labor.

A significant factor in the Harvard students' victory was the support of local and national unions. The carpenters' local and the Boston office of the progressive, union-backed group Jobs With Justice organized a community march in support of the students. The dining-hall workers' union, itself in the middle of contract negotiations, listed amnesty for the student protesters among its demands and twice held rallies outside the president's office. In the last week of the sit-in, AFL-CIO leaders, including president John Sweeney, staged a 1,500-person rally at Harvard, and AFL-CIO lawyers helped shape the students' final agreement with the administration.

Across the country, according to Jobs With Justice, living-wage campaigns are now active on at least twenty-one college campuses, and those at Wesleyan and the University of Wisconsin/Madison have already claimed victories. Meanwhile, students elsewhere are working on related campus labor issues, like outsourcing, benefits and organizing nonunion workers--not to mention the catalyzing cause of sweatshops.

The AFL-CIO's student outreach program, Union Summer, has played a key role in turning simmering concerns on campus about sweatshops, globalization, the decline in real wages and the growing gap between rich and poor into effective campaigns. Union Summer, which was part of Sweeney's platform when he was campaigning for the AFL-CIO presidency in 1995, gives 200 interns--mostly, but not exclusively, college students--a small stipend and a few days' training in labor history and organizing, and then sends them out for monthlong stints with labor campaigns around the country.

After a month talking with people who work twelve-hour swing shifts and support a family on $6.50 an hour, the students often feel that returning to sheltered college life is no longer an option. "It was a transformative experience for me," says Dan Hennefeld, a Harvard graduate who's now employed by the garment and textile workers union, UNITE, and who attended the first Union Summer in 1996, after his freshman year. "It made me want to be in the labor movement," he says. When Hennefeld got back to Harvard that fall, he helped start a group called the Progressive Student Labor Movement, which became the driving force behind the recent sit-in (three of the organizers were also Union Summer grads).

The nearly 2,000 graduates of Union Summer have played a major role in spreading awareness of labor issues on campus. In addition to those at Harvard, student labor leaders at Duke, Brown, Georgetown and the universities of Tennessee, Connecticut and Wisconsin are all Summer alums. To make room for an increasing number of applicants, the AFL-CIO is offering three specialized, ten-week internships this summer: Seminary Summer for future religious leaders (mostly seminarians, novices and rabbinical students), Law Student Union Summer and International Union Summer, now in its second year, which places a few college students in organizing campaigns in such countries as Egypt, Mexico and Sri Lanka.

During their brief stints the interns are schooled in organizing techniques and tactics. "I'm blown away by how smart and focused the student leaders today are," says Paul Booth, currently assistant to the president of AFSCME and one of the writers of the 1962 Port Huron Statement of the Students for a Democratic Society. And, he adds, they've taken to heart an essential principle of today's campus activism: organizing campaigns around the school itself. Students understand, Booth says, that "they ought to be getting the institutions they relate to to do things that are meaningful."

Says Harvard's Hennefeld, "We realized early on that we wanted to focus on Harvard and the way it fits into labor issues. That potentially made the most sense to students, and it seemed the most effective use of whatever power we had." As on many campuses, this school-focused work quickly centered around their colleges' connection to overseas sweatshops, where underpaid workers turn out the sweatshirts the students wear to advertise their privileged status. These targeted antisweatshop campaigns have so far convinced seventy-eight colleges to join the Workers' Rights Consortium, the strictest of the independent groups that monitor conditions under which university garments are made.

For many antisweat student activists, the transition to campus labor issues seemed only natural. "While we were doing our antisweat work, we talked to a lot of people who said, You've got to look at what's going on here. It would be hypocritical not to," says Becky Maran, one of the leaders of UConn's successful wage campaign. "With the energy and momentum from winning [the antisweatshop] campaign, we felt we had the strength to move on."

Students' domestic labor campaigns have taken a variety of forms. At the universities of Pittsburgh and Utah, student labor groups have latched on to pre-existing citywide living-wage campaigns. At Harvard and Johns Hopkins, located in cities that had already adopted a living wage, student campaigns have focused on pressuring their administrations to adopt the city's wage floor. And at the University of Tennessee, where "right to work" laws make a living wage at best a distant goal, labor campaigns have used the mere idea of a living wage to encourage workers to organize. Recent UT graduate Anna Avato, now an AFL-CIO organizer, says that after a media campaign was launched, "Workers were calling us and saying they wanted a meeting. By the end of the week, we had 150 workers at our first action." Within a year, the UT campus workers had formed an independent union, put an end to forced overtime and, in May, fended off a subcontracting threat.

On many campuses, activism that started as a living-wage struggle has spiraled off in other directions. Harvard students, with their newly strengthened ties to campus labor, are helping out with upcoming contract negotiations and continuing to organize among those janitors and dining hall workers still without a union. At Wesleyan, where a union wage fight for campus janitors was won a year ago, students have spent the past year working with the bus drivers of Middletown public schools to pass a Middletown living-wage ordinance. At Johns Hopkins, where a seventeen-day sit-in in March 2000 convinced the administration to pay its workers a living wage a year earlier than planned, students have been working on a half-dozen campaigns, allying themselves with locals of the Hotel Employees and Restaurant Employees Union (HERE), UNITE, the service employees' union (SEIU) and ACORN, a grassroots organizing group. At UT, with the independent campus workers' union up and running, students have taken a back seat to the workers themselves, helping to recruit new members and keeping up the pressure on the administration.

No matter what economic justice issue these campus efforts focus on, the thread that ties them together is their collaboration with labor. Encouraged by the students' successful campaigns, their enthusiasm and their ability to attract media attention, local and national unions are showing increased interest in working with student groups. UNITE pledged $25,000 to United Students Against Sweatshops to get it started in 1997 and continues to collaborate with USAS on ways to expand antisweat work. Jobs With Justice has joined the progressive United States Students' Association to form the Student Labor Action Project, which advises campus labor campaigns across the country and puts them in touch with local unions. And SEIU is planning an effort to bring young organizers, SEIU staff and student leaders together for discussions about how to reach out to more students.

Campus leaders, for their part, are eager to learn from the organizing experience of their union partners, as well as to get involved in real-world struggles for economic fairness. While such collaborations can be tricky--neither the student movement nor organized labor wants to give up its independence--both students and labor recognize the potential benefits. Dan DiMaggio, a Harvard freshman who participated in the sit-in, says that it "definitely galvanized workers. We went to a union negotiation the other night, and they gave us a standing ovation as they were about to receive their final offer." He adds, "The unions are very receptive to this idea of working together, and if the unions work together, that's pretty serious. If the unions and the students work together, that's pretty serious too."

As one faculty observer noted, it's particularly ironic for a law school to show such little respect for fair procedure, and its actions point to a "discontinuity between constitutional and administrative due process as taught in class and the ad hoc process of these hearings." Said Aaron Bartley, one of the student defendants, "The law school no longer deems its primary purpose as being the pursuit of justice or moral principle. The aggressive prosecution of the four of us, in an extremely vague and unfocused hearing, suggests to me that the law school has a long way to come in understanding the importance of moral action."